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Process for Federal Recognition of a Native Hawaiian Governmental Entity

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Process for Federal Recognition of a Native Hawaiian Governmental Entity Order Code RL33101 CRS Report for Congress Received through the CRS Web S. 147/H.R. 309: Process for Federal Recognition of a Native Hawaiian Governmental Entity September 27, 2005 M. Maureen Murphy Legislative Attorney American Law Division Congressional Research Service ˜ The Library of Congress S. 147/H.R. 309: Process for Federal Recognition of a Native Hawaiian Governmental Entity Summary S. 147/H.R. 309, companion bills introduced in the 109th Congress, represent an effort to accord to Native Hawaiians a means of forming a governmental entity that could enter into government-to-government relations with the United States. This entity would be empowered to negotiate with the State of Hawaii and with the federal government regarding the transfer of land and the exercise of governmental power and jurisdiction. There was similar legislation in the 106th, 107th, and 108th Congresses; the House passed a Native Hawaiian recognition bill, H.R. 4904, in the 106th Congress. While the Senate did not pass H.R. 4904, the bill would have been enacted through a provision in the Consolidated Appropriations Act, 2001 (H.R. 4577, P.L. 106-554), until a Senate concurrent resolution removed the provision by correcting the enrollment of H.R. 4577 (S.Con.Res. 162). This report describes the provisions of the reported version of S. 147; outlines some federal statutes and recent cases which might be relevant to the issue of federal recognition of a Native Hawaiian entity; and recounts some legal arguments that have been presented in the debate on this legislation. It includes a brief outline of the provisions of a substitute amendment expected to be offered in lieu of the reported version of S. 147, when Senate debate, which was interrupted by the filing of a cloture motion on July 29, resumes. The substitute amendment is the product of discussions that have included congressional, executive, and State of Hawaii officials. S. 147 has again been placed on the Senate Calendar. This report will be updated as warranted by legislative activity. Contents Introduction ..................................................1 Background ..................................................2 Federal Statutes Relating to Native Hawaiians .......................5 Hawaiian Homes Commission Act, 1920 .......................5 The Statehood Act .........................................7 The Apology Resolution ....................................7 Other Federal Statutes ......................................7 Recent Cases .................................................8 Kahawaiolaa v. Norton .....................................8 Rice v. Cayetano .........................................10 Doe v. Kamehameha Schools ................................11 Arakaki v. Lingle .........................................12 S. 147/ H.R. 309, 109th Congress.................................13 S. 147: Major Provisions As Reported by the Senate Committee on Indian Affairs .........................................14 Findings................................................14 United States Office for Native Hawaiian Relations..............16 Native Hawaiian Interagency Coordinating Group...............16 Process for Preparing a Membership Roll and Extending Federal Recognition to a Native Hawaiian Governing Entity ...16 Negotiation Authority: Land Transfers and Jurisdiction ..........17 Claims .................................................17 Indian Gaming Regulatory Act ..............................17 Indian Programs and Services ...............................17 Issues ......................................................17 Does the legislation establish a racial classification? .............18 Is this legislation within the power of Congress to remedy past discrimination? ..........................21 Does Congress have authority under the U.S. Constitution’s Indian clauses to enact legislation that recognizes a Native Hawaiian governmental entity? ...................23 Interpretation of Hawaii’s History............................24 Jurisdictional Issues.......................................27 Potential Cost............................................28 Legislative Action ............................................28 Senate Report and Cloture Motion ...........................28 Discussions on Language...................................28 Expected Substitute Amendment .............................29 APPENDIX I: Legislation..........................................30 APPENDIX II: Federal Native Hawaiian Programs......................32 S. 147/H.R. 309: Process for Federal Recognition of a Native Hawaiian Governmental Entity Introduction S. 147/H.R. 309 are similar to bills in earlier Congresses that would provide a process whereby a Native Hawaiian governmental entity could be organized and recognized by the federal government in much the same way Indian tribal governments are recognized by the federal government. Proponents believe that Native Hawaiians have lost their sovereignty by questionable actions of agents of the United States government and are entitled to the same kind of official recognition accorded to Indian tribes.1 They also seek this legislation because there is no process by which a federal administrative agency can accord such recognition to a Native Hawaiian governmental entity and because they may see such recognition as a means of saving federal and state programs for Native Hawaiians, which have been jeopardized by a trend in recent court decisions. In the most recent of these, Arakaki v. Lingle,2 decided September 1, 2005, a federal appellate court ruled that Hawaii taxpayers may contest the constitutionality of state funding of Native Hawaiian programs. The legislation has a long history.3 The House passed a Native Hawaiian recognition bill, H.R. 4904, in the 106th Congress. While the Senate did not pass H.R. 4904, the bill would have been enacted through a provision in the Consolidated 1 See “Joint Statement of Congressmen Neil Abercrombie and Ed Case Before the House Judiciary Subcommittee on the Constitution on H.R. 309/S. 147, the Native Hawaiian Government Reorganization Act of 2005,” 2-3 (July 19, 2005), which states that “[t]he essence of the Akaka bill is to confirm and further define the political relationship between our federal government and Native Hawaiians. This is nothing more than another manifestation of the bedrock of our federal policy toward indigenous people; the special government-to-government trust relationship between our government and federally recognized indigenous groups.” Senators Akaka and Inouye made a similar point: “this bill does not propose anything new nor does it afford special treatment to Native Hawaiians. Rather, this bill acknowledges our special relationship with Native Hawaiians and places them on an equal footing with the other aboriginal, indigenous people of the United States. It merely extends the Federal policy of self-governance and self-determination to Native Hawaiians.” “Joint Statement of Senators Daniel K. Akaka and Daniel K. Inouye Before the House Judiciary Subcommittee on the Constitution Regarding H.R. 309/S. 147, the Native Hawaiian Reorganization Act,” 3 (July 19, 2005). 2 ___ F.3d ___, No. 04-15306 (9th Cir. 2005). 3 See Appendix I: Previous Legislation, prepared by Roger Walke, Specialist in American National Government, Domestic Social Policy Division, CRS. CRS-2 Appropriations Act, 2001 (H.R. 4577, P.L. 106-554), until a Senate concurrent resolution removed the provision by correcting the enrollment of H.R. 4577 (S.Con.Res. 162). This report briefly surveys some of the components in the complex legal background of the legislative effort and issues raised. Background Native Hawaiians are similar to American Indians and Alaska Natives in that, before the arrival of Europeans, their ancestors lived in territory that eventually became the United States. Their legal status, however, and the history of their dealings with the federal government differ from those of the other groups.4 While Native Hawaiians have been included in various federal statutes authorizing programs for “Native Americans,”5 and in others setting up separate programs for Native Hawaiians,6 they are not covered by many statutes that require the Bureau of 4 Sources covering the historical background and the major legal developments relating to the Kingdom of Hawaii include: L. Fuchs, Hawaii Pono: an Ethnic and Political History (1961); and Ralph S. Kuykendall, The Hawaiian Kingdom (1968); Ralph S. Kuykendall and Grove A. Day, Hawaii: A History, from Polynesian Kingdom to American State (1961). Other sources that treat the overthrow of the Kingdom, its annexation by the United States, and subsequent legislation, including the Organic Act, the Hawaiian Homes Commission Act, the statehood act, the Apology Bill, and the history of federal legislation providing special treatment for Native Hawaiians, are: Felix S. Cohen’s Handbook of Federal Indian Law 797-810 (1982 ed); Brian Duus, “Reconciliation Between the United States and Native Hawaiians: The Duty of the United States to Recognize A Native Hawaiian Nation and Settle the Ceded Lands Dispute,” 4 Asian-Pac. L. & Pol’y J. 13 (2003); R.H.K. Lei Lindsey, “Akaka Bill: Legal Realities, and Politics as Usual,” 24 U. Haw. L. Rev. 693 (2002); Le’a Malia Kanehe, “The Akaka Bill: The Native Hawaiians’ Race or Federal Recognition,” 23 Haw. L. Rev. 857 (2001); Jon Van Dyke, “The Political Status for Native Hawaiian People,” 17 Yale L & P. Pol. Rev. 95 (1998); Stuart Minor Benjamin,
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